This case was tried by a jury in the court below.(
Howe, J.In the year 1869, the plaintiff being the highest bidder,, obtained from tlie waterworks of New Orleans the exclusive privilege-. *413of using water from the hydrants in the streets for the purpose of street sprinkling, for which he paid the sum of-nine hundred dollars; and in the same year he enjoined one Casserly from infringing this exclusive privilege.
In 1870 he was again- the highest bidder, and again received and and enjoyed the same exclusive right.
In.1871, the city having become owner of the waterworks, the plaintiff was again a' bidder, but not the highest one, and the privilege was awarded to Joseph Elliott for the .sum of two thousand dollars.
The plaintiff' at this point seems to have changed his views in regard to the legal propriety of such an exclusive privilege. He applied to the city for a supply of water to be used in the business of street sprinkling, but was refused, on the ground that the right had already been granted for one year to Elliott, a higher bidder. He thereupon commenced this action, alleging that his business of sprinkling streets, for which he was compensated by subscriptions of individual owners of property, had been broken up by this unlawful refusal, and claimed damages in twenty thousand dollars.
The cause was tried by a jury, who rendered a verdict in favor of plaintiff for the sum of five thousand dollars, and from a judgment .rendered thereon the defendant has appealed.
At a first glance at the evidence in the case it might be a matter of grave doubt whether the plaintiff has sustained any such damages as can form a basis for a judgment against the city. It appears that he sold his carts at “ what he asked for them,” and it would not be a violent presumption to suppose that he found a ready market for his mules in the spring of the year. ' At least it does not appear that they were sacrificed. He then went into business as a merchant, and, perhaps, he was a gainer by the change of pursuits. The verdict seems to be composed entirely of speculative profits which, lie thinks, he would have realized if he had continued the business of drawing water from the hydrants of the city and sprinkling it about the streets, and had been successful in such business.
We prefer, however, passing this point to inquire at once whether the acts of the city in the premises were of that unlawful character which would bring the corporation within that broad rule of law which declares that every act of man which causes damage to another, obliges him by whose fault it has been committed to repair the damage resulting therefrom. Was the city legally in fault?
By section thirty-eight of the act incorporating the Commercial Bank of New Orleans, it was provided that “the corporation of New Orleans shall' be supplied by the said company, free of charge, with all water necessary for the extinguishment of fires and other public purposes, nor shall the City Council be subjected to any charge of water *414furnished to supply the gutters of the said city and faubourgs; and-that the said company, as they progress in laying aqueducts, shall place, free of any charge whatever, two hydrants of a proper construction, in front of each square, ata suitable distance from each other, from which a sufficient quantity of water may be conveniently drawn, for extinguishing fires, for wetting, washing and watering the streets- and gutters, and any other public purposes; that, on the squares which do not front the river, the hydrants shall be placed on opposite sides of the streets, at an equal distance from each other, and the corners; that the said hydrants shall be of a proper size, and made so as at all times to furnish water for the fire engines, and purposes herein mentioned ; it shall further be the duty of said company to supply water for all the purposes herein mentioned, at all times during the continuance of this charter, unless prevented by some unavoidable accident; and in case such shall occur, the repairs shall be made and the water again furnished, at the expiration of the necessary delay; and the said company shall supply a sufficient quantity of .clear, pure and wholesome water for the use of the inhabitants within the limits aforesaid, at the elevation of fifteen feet, when the same may be required; provided, however, that said hydrants shall be under the control of the Commercial Bank.”
Under the provisions of law the city became the owner, by purchase, of the waterworks prior to the events which gave rise to this action. So far, then, as any obligation of the bank to the city was concerned, it might perhaps be said t'.iat the latter became by this transfer at once debtor and creditor, and the obligation was extinguished by confusion.
“L’exfmotion qui en resulte est commune a toute espece d’obligations. * * Les expressions de débiteur et de créancier employées par notre article ont un sens tres é endu qui embrasse tous les engagements de quelques nature qu’ils soient. * * Larombiére on art. 1300, C. N. No. 16.
But the plaintiff insists that there was a legal obligation on the part of the bank, and so on the part of the city, as transferree, to supply him with water for use by him in his business. We are unable to perceive this. The duty of supplying water for watering the streets was imposed on the bank in favor of the city, and, even if it still exist, is a matter in which the plaintiff has no special legal interest. The duty of supplying water to the individual inhabitant is evidently for domestic and other purposes upon private premises. A sufficient quantity of clear, pure and wholesome water, for the use of the inhabitants, is to be supplied, at an elevation of fifteen- feet. The relation of this obligation to the business of street sprinkling is not perceived.
The city of New Oileans owns, the waterworks; she has full control, especially, of the hydrants in the streets; she has full control of the *415streets as public highways. Her administrators have a large discretion in the management of her property and the police of her thoroughfares. The water that flows through her hydrants is pumped up from-the river at great cost, and it is matter of public notoriety that the supply for more important purposes than laying dust is frequently inadequate. She might declare that it was better that her citizens should' .suffer from dust - than from conflagration, and decline to furnish any water for street sprinkling; she might, probably, prohibit the business of street sprinkling as a private pursuit, which she now merely tolerates, if it seemed, as it might, to be an interruption to the free use of the thoroughfare; and we see no good reason why, in the exercise of a similar discretion — which the judiciary should be careful not to question or infringe — she may not lawfully dispose of the privilege of drawing water for sprinkling streets to the highest .bidder, and thus pro tanto lighten the burden of the tax-payer.
In the recent case of the Eclipse Towboat Company v. the Pontchartrain Railroad Company, 24 An., p. I, we had occasion to decide that when a railroad was under no legal obligation to “pro rate”' through freight with any one, a refusal to pro rate with the plaintiffs was not illegal, nor did it become illegal, because the railroad had made an arrangement upon sufficient consideration to pro rate with some one else. This case seems to be one in point.
It is therefore ordered that the judgment appealed from be reversed and the verdict set aside, and that there be judgment in favor of defendants, with costs in both courts.